SCO wanted gag order for Linus Torvalds, Groklaw in 2004

A new filing in SCO v. IBM shows that the litigious Utah company tried to have …

According to a recently uncovered filing in the long-running SCO v. IBM case, SCO tried to have Groklaw—along with a handful of people associated with the open-source movement, like Linus Torvalds—silenced back in 2004. In a letter sent to IBM, dated February 11, 2004, one of SCO's attorneys said that the company "had been told that IBM is a sponsor of Groklaw."

SCO suggested that all parties involved in the litigation be subject to a stipulated gag order. The company then stretched the definition of "involved parties" to include SCO, Columbia Law professor Eben Moglen, OSS advocate Eric Raymond, and Linus Torvalds. "Because of Mr. Torvalds' position in the technology world, his comments about SCO's evidence in this case are given particular weight in industry and popular press," argues the letter from SCO attorney Kevin P. McBride.

Although Groklaw has covered the intersection of open source and the legal system since its inception in 2003, it has become best known for its incredibly thorough coverage of the various lawsuits filed by Utah-based SCO, which claims ownership of some of the intellectual property incorporated into Linux.

SCO has accused IBM of secretly funding Groklaw and research site ibiblio.org on various occasions in the four years since the lawsuit was first filed. Earlier this month, SCO detailed what appear to be very flimsy allegations that IBM was actively supporting Groklaw; these allegations appeared in a motion that SCO filed after trying unsuccessfully to serve a subpoena on Groklaw creator Pamela Jones. At the same time, SCO failed to point out that ibiblio.org had previously hosted some SCO Caldera builds.

IBM is opposing SCO's attempt to depose Jones, pointing out that discovery closed over a year ago and that IBM has no connection with Groklaw. Big Blue also accuses SCO of trying to intimidate Jones. "Finally, it is difficult to see SCO's motion as anything more than an effort to intimidate an individual with whose opinions SCO disagrees and to support SCO’s continued efforts to reopen discovery," reads IBM's memorandum opposing SCO's motion to depose Jones.

Although Groklaw has been a thorn in SCO's side since it began covering the company's legal assault on Linux, SCO's problems are completely of its own making. SCO's case against IBM has been unraveling almost since the day it was filed, and its best hope for survival appears to be IBM deciding to settle, which is about as likely as the MPAA renouncing DRM. Of course, SCO v. IBM may never make it to trial, thanks to SCO v. Novell.

Last week, Novell filed for summary judgment against SCO, arguing that it never handed over the copyright to UNIX when SCO's predecessor company purchased UnixWare. If the court agrees with Novell—and the evidence supports Novell's position—it would mark the end not only of SCO v. Novell and SCO v. IBM, but SCO itself.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman